Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, June 28, 2006

Official Languages - When "Either" means "Both" or "Neither"

As reported, on June 26, 2006 Judge Layden-Stevenson of the Federal Court ruled against my application for a declaration that the Heritage Committee violated my official language rights when it refused to distribute documents that were an essential part of my testimony because they were in English only. Naturally, I’m disappointed and I’m considering an appeal. There is already interest in interventions. The decision is now online - in English only.

The bottom line is that the Heritage Committee, the Commissioner of Official Languages, and now the Federal Court are saying that bilingualism today means that I can’t use unilingual documents as part of my testimony to a Parliamentary Committee. For example, in this case, the Heritage Committee refused to let its members have copies of definitive, relevant treatise material by Mihály Ficsor, the world’s leading authority on the issue then being considered (the WIPO treaties) published only in English by Oxford University Press. This Committee chose to remain ignorant of this essential part of my testimony (i.e. Ficsor’s supportive analysis) rather than to have access to it in English only. My documents were not distributed to the Committee members.

I won’t go into the details of why this material was so essential to my testimony and presentation as a witness, but anyone familiar with the issue of national treatment, the WIPO treaties, and blank media levies will know that hundreds of millions of dollars are stake. Neither the substantive copyright issues nor the Committee’s Report were in issue before the Court in any way. The question before the Court involved the right of everyone to use EITHER the English language - OR the French language - to present testimony about this or any issue - WITHOUT being required to use BOTH languages.

Here is what s. 4 of the Official Languages Act states:

4. (1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.

(emphasis added)

However, the Committee, the Commissioner of Official Languages and now the Court have ruled that a person’s right to use “either” official language when dealing with a parliamentary committee really means an obligation to use “both”, when it comes to written communication. So, "either" applies only to the spoken word, and not the written word. Written words must be in both official languages, despite what the Official Languages Act seems to so clearly say. The Court believes that this is consistent with the Official Languages Act and that, in any case, the Committee’s practice is protected by parliamentary privilege.

With respect, I believe that this is fundamentally wrong on both fronts.

In my view, this result is the absolute antithesis of bilingualism. I’m astounded that, in 2006, Parliament - which is our supreme federal institution - would seriously contend that “either” means “both” when it comes to official languages and that, in any case, it can rely on parliamentary privilege to get around the plain meaning of the Official Languages Act, which is quasi- constitutional legislation to which it has expressly bound itself. It’s a setback of several decades of struggle for language equality and access to their ruling institutions by individual Canadians. In my view, it’s contrary to the law and, above all, to common sense. Canadians in every province and of every political persuasion should be very concerned about this decision.

As to parliamentary privilege, there is a Supreme Court of Canada decision from last year very close on point penned by Justice Binnie called Vaid v. House of Commons, which held that the Speaker could not invoke privilege to get around human rights legislation. It seems to me that this should apply at least as muchto the Official Languages Act, which is "quasi constitutional" legislation and which is explicitly applicable to Parliament.

In any case, by saying that “either” means “both”, and by denying my right to provide essential documents to a Parliamentary Committee in the only official language in which they were available, and allowing that Committee to remain ignorant of this essential information, this interpretation effectively says that “either” means “neither”.

2 comments:

This ruling is certainly disappointing. Perhaps the determination that "either" means "both" in the context of the OLA might suggest that they sought guidance from William Jefferson Clinton, a well-known interpreter of the English language.

1. One of two; the one or the other; -- properly used of two things, but sometimes of a larger number, for any one.

Lepidus flatters both, Of both is flattered; but he neither loves, Nor either cares for him. Shak.Scarce a palm of ground could be gotten by either of the three. Bacon.There have been three talkers in Great British, either of whom would illustrate what I say about dogmatists. Holmes.

2. Each of two; the one and the other; both; -- formerly, also, each of any number.

His flowing hair In curls on either cheek played. Milton.On either side . . . was there the tree of life. Rev. xxii. 2.The extreme right and left of either army never engaged. Jowett (Thucyd).